The river comes last

  • Bighorn Canyon National Recreation Area

    Map by Diane Sylvain
  • Clara Nomee, chairwoman of the Crow Tribe

    George Schunk photo
  • John Chaffin, an attorney for the Department of the Interior

    George Schunk photo

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But Chris Tweeten, the state's lead negotiator, who is running for a seat on the Montana Supreme Court, says politics didn't have much to do with it. "We did it for the good of the state. The stars may not line up like this again and we just had a limited window to get it done."

The "limited window" caused real problems for instream flow advocates. "We never got to see a copy of the compact until it was finished and by then, no changes were allowed," says Bruce Farling, head of Montana Trout Unlimited. "We walked in the card game late, got dealt two deuces, and did our best to protect the fish." Those efforts resulted in a memorandum of understanding that the state, tribe and federal government would develop a streamflow and lake level management plan within a year of the Legislature's ratification of the compact.

The short time frame also caused problems for the federal government's representatives. They refused to endorse either the compact or the memorandum and said the fast track negotiations simply did not provide sufficient time to determine if enough water is available for all the guaranteed appropriations, let alone for instream flows.

The federal government is an important player because the Bureau of Reclamation operates Yellowtail Dam, and it must agree to both the timing and amount of water releases. "We're worried about the feds," says Trout Unlimited's Farling, "because the Bureau of Reclamation is in the consumptive water business, not the instream flow business. Throughout the West, whenever the Bureau has a choice between fish and consumptive use, the fish lose."

Federal negotiators point out that as trustee for the tribe, their primary duty is to make sure that it is the tribe that ultimately decides whether to use its share of the Bighorn's water for irrigation, municipal and industrial needs or for instream flows to maintain the fishery.

A future full of questions

Being asked to trust the future of the Bighorn fishery to a shaky memorandum of understanding in the face of federal opposition was too risky for some. "It's not easy standing in front of a political steamroller, but other tribes have instream flows quantified in their compacts and it should have happened here" said Rep. Bob Raney, D-Livingston, a conservationist and 15-year legislative veteran. "I usually vote with the Indians, but I couldn't support this. Everybody else gets their water first and the river comes last."

Rep. Bill Eggers, D-Crow Agency, an attorney and Crow tribal member, called himself "a lone wolf, a voice in the dark" when he warned fellow state legislators that instream flows are only one of many issues left unresolved. "This agreement leaves way too much hanging in the air. We may be carrying lawyers on our back into the next century over this."

Even Pat Graham, director of Montana's Department of Fish, Wildlife and Parks and part of the administration that negotiated the agreement, cautioned the legislature that the memorandum fails to "adequately protect this wild trout fishery."

Rep. Hal Harper, D-Helena, wanted something better than just the MOU - he wanted language in the compact itself. Although Republican leaders had told him no amendments would be accepted, Harper, a former speaker of the House and well-known fly angler, gave it a shot.

With help from fellow Democrats and a few Republican sportsmen on the House Natural Resource Committee, Harper succeeded. His amendment says: "The Montana Legislature intends that the streamflow and lake level management plan should provide enforceable mechanisms that protect the long-term biological viability of the blue-ribbon, wild trout fishery on the Bighorn River." Like a lone remora on a great white shark, the amendment stuck to the bill as it knifed through the Legislature and across the governor's desk.

The next stop for the compact is the U.S. Congress, which could cast a more critical eye on the agreement. While Harper's amendment expresses legislative intent to protect the fishery, it doesn't specify what flows are actually required. Consensus is that 2,500 to 3,500 cubic feet per second would protect the fishery and Congress could write in those levels before approving the compact and sending it back to the state and tribe. But downstream Wyoming could object in the Congress, since lowering Bighorn Lake to protect the fishery could leave that state's water users dry.

Thanks to heavy snowfall in the mountains, letting water run down the river this year is no problem. But in dry years, there simply may not be enough water to meet all the demands. When that happens, there are no guarantees that sufficient quantities of cold, clean water will remain in the river to keep those fabulous fish healthy and their spawning beds covered.

In this compact, irrigators and other consumptive users of water come first, and the river comes last.

George Ochenski writes in Helena, Mont., and has lobbied the Montana Legislature every other year since 1984, mainly on behalf of public interest groups and Indian tribes.

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